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2018 Supreme(Kar) 1030
IN THE HIGH COURT OF KARNATAKA, BENGALURU
B.V.Nagarathna J.
Sirsendu Roy S/o Sri Nirmalenndu Roy - Petitioner
Vs.
Smt. Anamika Roy Aka Anamika Banerjee W/o Sri. Sirsendu Roy - Respondent
Writ Petition No.14627 of 2018 (GM-FC)
Decided On : 27-09-2018
For the Appellant : Sri.James P Arun Kumar, Adv.
For the Respondent: Sri. Vishwanath Venkatesh, Adv.
Headnote:
Civil Procedure Code,1908 - Section 89 - Karnataka Civil Procedure (Mediation Rules), 2005 - Rules 24 and 25 and Section 89 - Special Marriage Act - Sections 27(1) (a) & (d) and 28 - Dowry Prohibition Act - Sections 3 & 4 - Decree of divorce by mutual consent - Seeking dissolution of her marriage - Whether there would be any final settlement of matter - Respondent is wife petitioner-husband had filed before Principal Judge, Family Court seeking judicial separation from respondent-wife counter blast to said petition respondent - Wife sought for dissolution of marriage between parties had taken place matter was referred to Bangalore Mediation Centre attached to Family Court - Parties mutually arrived at a detailed Settlement of their disputes - Memorandum of Agreement under Section 89 of CPC read with Rules 24 and 25 of Karnataka Civil Procedure 2005 was drawn up - MEMORANDUM of Agreement was signed by parties and their respective counsel matter was posted before the Principal Judge, Family Court for acceptance of Memorandum of Agreement and for issuance of directions for drawing up a decree for dissolution of marriage – Held, Pass final order or decree of divorce or in the alternate, direct Learned Family Court to pass the final order for decree of divorce, on receipt of Order of Hon’ble Court, in interest of justice and equity - Learned counsel for petitioner submits petitioner-husband has to pay a sum total sum of respondent-wife and same shall be paid during the course of day through demand draft by handing over the demand draft to learned counsel for respondent has agreed to same - Learned counsel for respondent submits all cases instituted by respondent against the petitioner are withdrawn except one case filed respondent shall withdraw said case - Memo is filed to effect signed by respondent - Learned counsel for the petitioner further submits original gift deed and original title documents and keys of apartment at Vododara are in the safe custody of Family Court and petitioner has no objection for respondent to seek return of said documents - Learned counsel for respondent submits respondent shall take steps to seek for return of same - Marriage between them is dissolved by mutual consent as per Section 28 of Special Marriage Act, 1954 as the parties are living separately for almost four years and that they have mutually agreed marriage is to be dissolved – Ordered Accordingly
Though this writ petition is listed for preliminary hearing, with the consent of the learned counsel appearing for both the parties, it is heard finally.
2. Petitioner is the husband, while the respondent is the wife. Petitioner-husband had filed M.C.No.2670/2014 before the Principal Judge, Family Court, Bengaluru seeking judicial separation from the respondent-wife. As a counter blast to the said petition, the respondent - wife sought for dissolution of marriage between the parties which had taken place on 11.5.1995 at Kolkata. The matter was referred to Bangalore Mediation Centre attached to Family Court, Bengaluru. Parties mutually arrived at a detailed Settlement of their disputes. Memorandum of Agreement under Section 89 of CPC read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation Rules), 2005 was drawn up. The Memorandum of Agreement was signed by the parties and their respective counsel on 28.7.2017. Subsequently, the matter was posted before the Principal Judge, Family Court, Bengaluru for acceptance of Memorandum of Agreement and for issuance of directions for drawing up a decree for dissolution of marriage. At that stage, the Family Court Judge noted that the respondent herein had resiled from the Settlement whereas the petitioner herein had filed a memo on 12.12.2017 and 3.1.2018 for orders to be passed on the Settlement. Considering the aforesaid facts and on hearing learned counsel appearing for the respective parties, the Family Court, Bengaluru rejected the memos filed by the petitioner herein vide order dated 17.1.2018 (Annexure-P). Being aggrieved by the said order, petitioner-husband has assailed the same in this writ petition.
3. On the last occasion, when the matter was listed before this Court on 11.9.2018, on hearing the respective counsel for the parties, they were requested to ascertain whether there would be any final settlement of the matter. Today, learned counsel appearing for the respective parties in presence of their parties have filed a Joint Affidavit stating that the dispute between the parties has been finally settled and that there is no other reason or impediment as to why the Settlement arrived at between the parties before the Mediation Centre and further Settlement arrived at between them before this Court could not be accepted and a quietus be given to the matter.
4. In the circumstances, learned counsel appearing for the parties have jointly sought for setting aside order dated 17.1.2018 (Annexure-P) and for acceptance of the Settlement arrived at between the parties before the Mediation Centre and in addition the terms and conditions arrived at between the parties before this Court. They further submit that this Court may accept the same and direction may be issued to the Registry to draw up a decree for dissolution of marriage between the parties.
5. Submission of the learned counsel for the respective parties is placed on record.
6. Petitioner as well as respondent are also present in the Court and they have been identified by their respective counsel. They submit that in furtherance of the Settlement arrived at before the Mediation Centre, they have agreed to further terms and conditions to be complied with which would give a complete quietus to the dispute between the parties and that this Court may accept the same and conclude the proceedings and decree of dissolution of marriage (decree of divorce) be granted. They further submit that the Settlement arrived at between the parties is amicable and without their being any force or coercion from any quarter and that they have arrived at a Settlement on their own volition.
7. In view of the above Settlement made, Memorandum of Agreement under Section 89 of CPC read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation Rules), 2005 (Annexure-A) is perused. The same reads as under:
MEMORANDUM OF AGREEMENT UNDER SECTION 89 OF C.P.C READ WITH RULES 24 & 25 OF THE KARNATAKA CIVIL PROCEDURE (MEDIATION RULES) 2005
